Tuge Makore Magambo vs Mehrab Transport Limited and Others (Civil Case No. 215 og 1995) [1999] TZHC 143 (18 November 1999)

) IN THE HIGH COUB.T OF Tt,NlA l'.IJ\ Df\R ES Si:J.,.'~At 1 : DISTRICT REGISTRY AT DAR ES_ SAL.'\Alil CIVIL CASE N0.~1.: OF 1995 TUGB ¥if1KORE E/1G.M-'BO • , ••••••••• · •••••••••• PL/\INTIFF 1. 2. 3. BUBESHI, J: VERSU,5. • I'-'iEH'.=ti,j TR.t,Nsr·o:~T Lil'!iITED PI,SC"\L MPING./A COACH !Hill TRl/T COIV'FJ\NY ,.,IM'.1:'IED CORPOR.TION LIITED RULING

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J i l ... DEFENDi\NTS I l The pl,3intiff file<i '-· claim for damages against the four defencants, jointly 8Dd severally, destroyed building, destroyed. pick up, lost/vrindalised r.1ert..handise, interest and '.)asts. In course l< hearing this suit the 1st, Jrd.and 4th defendants have filed preliminary obje-.tions 611 points of law. The 1st defendant has oeen joined in the suit as it is claime h2 is the owner cf the vehicle 'l'ZJ: 3967 that collided with TZF Toyota J.v.in bus drjver by the 2nd defendan'I. Mr. :Mhongo learned ccunsel for the 1st defendant has submitted that there is no cause cf action disclosed in the pleadin enjoining his ~lient, He has for.~efully argued that on the facts pleaded the 1st defendant cannot be held responsj_ble for the accident that happened en 30/11/1994. He has added th3t the plaintiff has not shown under which branch cf tort the claim was being laid. That if the claim is bas2d on negligence the p::Jrticulars must be given in the pl a int. He submi ~~~~ ~~ ~ Mi ~A½s 8§~~ there are none. He ref.erred the court to the case of National Bank of Commerce v Rej.d and. 'fwo others - (1971) H ... O.D No.80 and G. P. Jani Properties Ltd Vs. Dar es Salaam City Council (1966) E.A 281. • .. /2

2 He concluded by statin$ thot mere haprening of aour accident is not sufficient to ~~nnect the 1st defendant in this claim, Mr. Massawe for the i:-1aintiff has conceded that it is not the 1st defendant who caustc!d the accident but his vehicle that contributed to the less sufferE.d. He is of the view that sufficient cause c,f 2. \ition has been disclosed. The term cause of actlcn means ~ome wrongful act committed by the defendant. It rnay J::-,r:, based on contract, or tort •. If the second defendant vms charged and.convicted and that , the vehicle of the 1st dcd:~ndant was in the vicinity of the

• J accident and cc.ntri.l'mted, according to plaintiff ts counsel, to the destruction of -the \ilaintiff 's property, can this cmmect the 1st defendant to the damaged being claimed~ Is this sufficient to conl'll::ct the 1st def~ndant? I think not. There must b2 a nexus linking the l,_st defendant with what happened on that day, and not otherwise. And that linkage must be E:stablishe:1 by ev.idence. The 3rd Defendant hss objected to being joined in this suit as the company is non existence ond that the vehicle TZF Bl46 belongs not to coach and truck Workshop but to M/S' Hanna Ngosi of Iringa. According to 3rd Defendant the · 2nd defendant was emplc.yE'!d by Hanna Ngossi. In his reply, counsel for the plaintiff has conceded that if the 2nd defendant is not employed by 3rd defendant than he can stand alone. I think the plaintiff is concet:1:ding that the 3rd defendant was wrongly joined. The 4th defendant hss objected on ground that there is no cause of action disclosed - Order VII. Rule 11 (a) of the CPC. Mr, Kilindu has 3ubmitted that ·whether a plaint discloses a cause of action is to be dtermined from the plaint alone together with anything attached and forming part of it, on the assumption that any.facts alleged or impli'ed 1:1re true - Dharsi Manji & Sons v Amiri Saidi 1972 HCD 234

:::. 3 Mr. Kilindu st::itecl that is is fc:i.' the plaintiff to establish that there was ::.n ed2 cnce, at the time of the accidc:?nt, valid cc:ntrac:t :;f insurance between the clahnant _anc.1 the 4th Defend .. nt. Mr. l'iassawe for the plairti.ff h2s submitted that the demand letters nc.dressed tc, the 4th def er.1dant . form the basis cf the cauc ,f osticn.- 'i'i1at the insurer was enjoined after demar.c: rotice we1 e s2rvecl en the 4th defendant. I must hasten to say t;~~:c1t che arguments raised by Mr. Massawe are at bes·t n.qive, Demc:.nd letters by themselves j cannct in my view be a be ..;:is for a ceuse of action, Relationship betwer,;n the insurer and the. insured is always contractual the basis the. ..Jicre will be the insurance policy (s) in existence br:-?tween the claimant and the insurer, befo1e the 4th dr.,fendant c:::i:--1 be moved to examine the claim (s). Can the c•:,urt presure that the 4th defendant had a valid insurance pcl :i..cy with th(~ plaintiff, sc as to enforce payment -:if claims? I doi.t think sc, and there is no automatic liability here. Each csse must be dealt with separately, on its own merits. In sum I uphold the cbjectians raised in respect of 1st, 3rd and 4th defendants. The suit against the :trio. is ordered disissed for failure to disclose cause of actio~~ The plaintiff is condemned to pay costs Delivered before Massawe for plaintiff Mhango for 1st Defendant and Mhango for 1st Defendant Rnd hclding brief fer M.wakingure and Mr. Kil indt:.. '~ . /I ,- ; I , ·. 1/ f ; . Ju;• I 1 'I - ' . / ~. . . ;! • • I '. , 1 . ,I·:. j I ·'· .,:J,_. ,._A A.G. BUBE3HI JUDGE 18/11/99